Kendall v. Highway Comm'n

• Decision Date: 26 May 1914
• Docket Number: (No. 628.)
• Citation: 165 N.C. 600,81 S.E. 995
• Court: North Carolina Supreme Court
• Parties: KENDALL et al. v. HIGHWAY COMMISSION.

(165 N.C. 600)

81 S.E. 995

KENDALL et al.

v.HIGHWAY COMMISSION.

(No. 628.)

Supreme Court of North Carolina.

May 26, 1914.

1. Pleading (§ 214*) — Demurrer — Admissions.

A demurrer admits the truth of all the facts set out in the complaint.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*]

2. Pleading (§ 193*)—Grounds fob Demurrer—Matter Not Apparent on Face or Complaint.

A complaint alleging a trespass quare clau-sum fregit, and that it was unauthorized and unlawful, was not demurrable on the' ground that plaintiff could not maintain an action of tort against defendant highway commission, where there was no statute giving such right of action, since no justification of the admitted cause of action appeared on the face of the complaint.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. 425, 428-435, 437-443; Dee. Dig. § 193.*]

3. Pleading (§ 210*)—Grounds of Demurrer —Matter Not Apparent on Face of Complaint—"Speaking Demurrer."

Such complaint was not demurrable on the ground that plaintiff's exclusive remedy was by petition for a jury to assess damages as provided by a cited public local law, since the demurrer was a "speaking demurrer, " and interjected an alleged act of the General Assembly not referred to in the complaint.

[Ed. Note.—For other cases, see Pleading, Dec. Dig. § 210.*

For other definitions, see Words and Phrases, vol. 7, p. 6504.]

4. Trespass (§ 41*) — Pleading — Answer — Defenses.

In such case the defenses attempted to be raised by the demurrer should have been pleaded by answer.

[Ed. Note.—For other cases, see Trespass, Cent. Dig. §§ 89-97; Dec. Dig. § 41.*]

Appeal from Superior Court, Cherokee County; Carter, Judge.

Action by John H. Kendall and others against the Highway Commission. Demurrer to complaint sustained, and plaintiffs appeal. Demurrer overruled, and defendant directed to answer.

M. W. Bell, of Murphy, for appellants.

Dillard & Hill, of Murphy, for appellee.

BROWN, J. The facts as alleged in the complaint as a basis for the plaintiff's cause of action are substantially as follows: That Francis H. Kendall is dead, and left a last will and testament; the plaintiffs being appointed therein as executors and trustees. That the Highway Commission is a corporation created, organized, and existing underthe laws of North Carolina. That for many years prior to his death the said Kendall was the owner of tract No. 20, on Valley river, containing 139 acres, more or less, which, by his will, was devised to the plaintiffs, who were the owners thereof at the time of the injuries complained of. That on the 1st day of December, 1912, and at different times before and since, the defendant, without leave or liceuse, and without authority of law, unlawfully entered upon said tract, and with a large force of employes, teams, and men, and without notice to plaintiffs, unlawfully wasted and spoiled said tract by digging great ditches and throwing up the earth to form into a fill entirely through the tract, which was rich bottom land, thereby making holes of great length and depth on both sides of the fill, to the injury of the tract and damage to the plaintiffs. That, by reason of the said digging of the ditches and holes and construction of the fill, the land next to the river is rendered inaccessible from other parts of the tract, which tract was valuable only as a farm before these things were done. That, by reason of such unlawful acts, the plaintiffs have been endamaged in the sum of $1,000.

The defendant interposes a demurrer as follows:

(1) For that the plaintiffs cannot have and maintain an action for a tort such as is set forth in the complaint in this action against the Highway Commission of Valleytown township, unless such right of action is given by statute, and there is no statute which gives the plaintiffs such right of action.

(2) For that whatever remedy the plaintiffs had was by petition for a jury to assess damages on account of the taking of the land described for a public road, as provided by ...